respective claims to the sovereignty of the island, questions as to the kind and extent of jurisdiction to be maintained by the two parties are to be decided in conformity with the temporary arrangement (settlement) first proposed substantially by Captain Geoffrey Phipps Hornby, of Her Majesty's ship Tribune, to Captain Pickett, August 3, 1859, concurred in by the President of the United States, as seen in War Department dispatch from Mr. Drinkard to Lieutenant-General Scott of September 16, 1859, and established by Lieutenant-General Scott in October and November, 1859, and at the time partially, and since fully, agreed to by the British authorities. That arrangement, or "temporary settlement," was on the basis of a joint and exclusively military occupation of the island by land forces of the two powers. You will observe that the question of joint civil jurisdiction was fully discussed at the time, it being urged by Governor Douglas and resisted and rejected by Lieutenant-General Scott. The latter, in his letter to the former of November 2, 1859, says as follows:
You submit for (my) consideration that for the protection of the small British and American population settled on the island there should be a join civil occupation composed of the present resident stipendiary magistrates, with such assistants as may be necessary, and that the military and naval forces on both sides be wholly withdrawn. It strikes me as a decisive objection to this basis, that if a magistrate (judge or justice of the peace) could be legally except by treaty between sovereign powers) established on neutral territor, such functionary could not be subjected to the orders of any officer of the U. S. Army, nor even to the direct control of the President of the United States, though appointed by an American Territorial Governor claiming jurisdiction over the disputed territory, and therefore not to be considered as a fit person to be intrusted with matters affecting the peace of two great nations.
For this and the terms of the "temporary settlement" as established, the entire police of the island was, as to American citizens, exclusively with the U. S. military forces, and as to British subjects exclusively with the British forces. The major-general commanding observes in the subsequent instructions and orders of the U. S. military authorities having the matter in charge, a deviation from the status thus established, growing out of the action of the civil authority of Washington Territory relative to the projected imposition and collection of taxes on the American residents on the island, and he directs they be, by whomsoever given, so far modified as to conform to the arrangement made by Lieutenant-General Scott before cited. In the instructions to you from department headquarters of March 9 and August 31, 1863, as embodied in your letter to Captain Bissell, of September 26, 1863, the general notices the following:
The general commanding the department has no objection to the civil authority exercising their proper functions on the part of the island over which the military commandant of our Government exercises control, but they must not in the present state of affairs attempt to exercise authority over the northern half, that under charge of the English commandant. The residents in the southern half of the island must behave themselves, and not make it a nest for gamblers and drinking shops.
The instructions of General Wright, dated the 9th of March last, asaid, "You can say to the American settlers on the portion of th island under the jurisdiction of the United States that they will not be interfered with by the military authorities in any manner whatever. The civil authorities, if duly appointed or elected under the laws governing the Territory of Washington, will be permitted to exercise their legitimate functions. "
It is a mistake to speak of our exercising authority over the southern half and of the British exercising authority over the northern half, as if the island were in fact divided between them, separated by some undefined line, and to give warning to the inhabitants in the southern half, as if they and none others were all under our jurisdiction. The